SCGA Public Affairs


Tuesday, September 5, 2023

As the legislature races to the finish of a session complicated by a budget deficit that cannot be known until the Franchise Tax Board receives Californians’ tax returns in mid-October, here is what we can report now about those bills the golf community has supported in the session, the bills the community has been tracking carefully, and one gut-and-amend job we have brought to your attention for what its fate may be able to inform us about the decibel level of what we have termed “labor’s roar” and others have called “labor’s hot summer.”

First, the two (2) bills the allied California golf community formally supported – AB 1572 (Friedman; D-Burbank) and AB 1573 (Friedman; D-Burbank). Both are headed to the Senate floor where their passage is all but certain.

To refresh your memories.

AB 1572 prohibits the use of potable water to irrigate nonfunctional turf on commercial, municipal, and institutional properties beginning in 2026.

Even before AB 1572 made it through its Assembly house of origin, the following language identifying “recreational” areas as functional turf and thus exempt from the bill’s proscriptions was added: "Recreational use area” means an area designated by a property owner or a governmental agency to accommodate human foot traffic for recreation, including, but not limited to, sports fields, golf courses, playgrounds, picnic grounds, or pet exercise areas. This recreation may be either formal or informal.

In its travel through the Senate AB 1572 was further amended to buttress local over state control and to use the California Water Efficiency Partnerships definition of functional and nonfunctional turf, which rather than using two generic categories of turf, employs three categories, functional, recreational, and ornamental, reinforcing further golf’s longstanding status as “functional/recreational” turf for the purposes of this and other proscriptions under California law.

AB 1572 and its companion AB 1573 [prohibition of nonfunctional turf in new or renovated commercial/industrial areas] (Friedman; D-Burbank) contain language making clear that “golf” is part of the “functional” and “non-ornamental” classes of turf exempt from the proscription, and the second of the bills (AB 1573) specifically enshrines that language in a Model Water Landscape Ordinance (MWELO) with a 1.0 plant factor for turf that shall henceforth be the mandatory minimum default position of every planning agency in the state.

To the degree to which so much of the sausage making involved in crafting legislation is cutting and pasting extant language into future language, these categorizations become the default language, the starting point as it were. Anyone familiar with the damage done to the national golf community by language inserted in a 1977 IRS regulation placing golf on a “sin list” of businesses ineligible for federal disaster relief can understand the significance of this. And we trust you understand the importance of golf overtly supporting these two bills.

With respect to the most significant of the bills golf tracked closely in the session SB 389 (Allen; D-Redondo Beach) and tracked for what it portends for what we anticipate are likely to be future erosions in longstanding water rights many have long considered sacred, here is where that bill stands.

But first, another refresher.

As originally introduced in February, SB 389 proposed the addition of a new article to the Water Code authorizing the State Water Board to:

  • Investigate a diversion and use of water from a stream system to determine whether the diversion and use are based upon a valid right;
  • Issue an information order to a water user to provide technical reports or other information related to the diversion;
  • Issue a decision or order that determines the water right, whether limited in scope or wholly invalid;
  • Find forfeiture even without a conflicting claim by another water user; and
  • Repose the burden of proof upon a water user to establish the validity of any claimed water right.

In short, SB 389 as initially introduced would have vitiated California’s longstanding Riparian and pre-1914 water rights by placing the “determination” of those rights under the jurisdiction of the State Water Resources Control Board (SWRCB). Under existing law, often referred to as the “California Doctrine,” riparian and appropriative rights are recognized as determinative. Holders thereof take precedence over all other claims.

A bit of background to place the significance of this legislation in context.

Riparian rights are attached to land that is contiguous to a river, stream, or other natural water course. They permit a landowner to put the water to beneficial use on their land. Riparian rights derive from English common law, which the California Legislature adopted upon becoming an American state in 1850.

The doctrine of prior appropriation (also known as “first in time, first in right”) applies to appropriative rights and is a seniority system that still applies today. Under prior appropriation, a junior water right holder (i.e., one that claimed a right at a date after a senior water right claimant) has his/her right curtailed, or cut back, in times of shortage before the next claimant has his/her right curtailed. Like riparian rights, appropriative rights were recognized in the 19th Century, albeit a few years after California entered the Union by virtue of an 1855 California Supreme Court decision that was codified by an act of the legislature in 1872.

It wasn’t until 1913 that California established a more comprehensive and trackable framework for managing water rights with the creation of a state Water Commission accorded sole jurisdiction to determine rights to unappropriated surface waters. The Act that created the Water Commission recognized that water rights obtained prior to its passage were still valid. The Water Commission later became the State Water Resources Control Board.

Given its vitiation of 110 years of established California water law, SB 389 as first proposed incurred considerable opposition, most significantly from the politically influential Association of California Water Agencies (ACWA), which likely explains that as it now stands, it has been amended to make it more about the acquisition of information than the enablement of state action.

The version passed by the Senate was significantly amended prior to passage, and the version that passed through Water, Parks and Wildlife in the Assembly was amended more so. As it now reads, SB 389 authorizes the State Water Board to merely “investigate and ascertain” the validity of surface water rights as opposed to “determine” the validity of those rights. In addition, the amended bill now merely obligates the State Water Board to burden a water user as is reasonably needed to ascertain the information required to sustain a right, and it deletes a provision that would have statutorily imposed the burden of proof on any water right claimant.

Opposition from ACWA, various agricultural interests, and municipalities certainly contributed to the watering down of SB 389; however, watered down or not, should it make through Appropriations and the floor and be signed by Governor Newsom, we believe it presages a cascade of rights-reversing water legislation in 2024 and beyond. And that is where it now stands – before Assembly Appropriations, where if it isn’t held in suspense, will likely pass a floor vote, be enrolled, and sent to the Governor for signature or veto. And unlike AB’s 1572 and 1573, which are highly unlikely to be vetoed, this one could be.

We’ll soon know. And with that knowledge we’ll have a greater sense of two other bills of similar consequence that are being carried forward by their authors to January as 2-year bills – AB 460 (Bauer-Kahan; D-Orinda) that would authorize the State Water Board to issue “interim relief” orders to enforce the reasonable use doctrine and water rights, and AB 1337 (Wicks; D-Oakland) that would authorize the State Water Board to issue curtailment orders for any diversion, even pre-1914 appropriative rights. If SB 389 becomes law, expect these two bills to follow suit, although both would likely be amended considerably before becoming so.

As for the “gut-and-amend” effort we predicted in an earlier Update, SB 799 (Portantino; D-Glendale) that would follow suit in part with New York and New Jersey in providing unemployment benefits to striking workers is in committee, suffice it say that this one is hotly contested. How that contest turns out by end of session at midnight September 14 should tell us just how loud what we earlier termed “labor’s roar” is this summer.

The formal arguments in both support and opposition are predictable. From the legislative analysis:

Arguments in Support. The California Labor Federation, the sponsor of this bill, writes in support on behalf of a coalition of labor groups: “As long as striking workers are ineligible for UI benefits (unemployment benefits), the State is giving employers a weapon against the interests of workers, their families, and communities. The prohibition on striking workers receiving UI enables employers to wait out a strike, hoping that the precarious financial situation of their workers, many of whom will face inability to stay in their homes, loss of health care, and strangling debt, will lead to a swifter end to the strike.”

Arguments in Opposition. The California Chamber of Commerce has labeled this bill a “job killer.” In opposition the Cal Chamber and other employer organizations write: “Striking workers have a job – they are just choosing not to work in order to create economic pressure and negotiate. That is not the same as having no idea where your next paycheck comes from. SB 799 is a profound departure from UI’s history, and a significant tax increase on California’s employers, including those who have no involvement in any labor disputes. Moreover, with a recession potentially in our future, SB 799 risks compounding UI’s insolvency – which will weigh heavily on the State, California’s employers, and California’s truly unemployed.”

Also from the legislative analysis is a “suggested amendment” that in our opinion opens a wide berth for predicating opposition on a factor outside the scope of both “arguments:”

Suggested Amendments. Should this measure move forward, the author may wish to consider a delayed implementation date until the UI Trust Fund is no longer suffering a deficit or, at the very least, until the new IT system EDD Next is complete in Fiscal Year 2026-27.

On the other hand, just last week the National Labor Relations Board (NLRB) issued a ruling that allows for the Board to bypass an election and go straight to bargaining in situations where employers are found to have committed serious labor law violations in combatting employees’ efforts to organize a bargaining unit. Previously, the only remedy was to require an election or a do-over election. The “roar” isn’t just a California thing.

For those with huge appetites for detail, here are links to AB 1572 & AB 1573 as they are headed to the Senate floor, SB 389 as it stands going to Assembly Appropriations, and SB 799 as it courses through committees.

AB 1572
AB 1573
SB 389

SB 799

As of today (September 6), there are 948 “active measures” before the Assembly and Senate. With only 8 days to go in the session, things promise to be fast and furious in the Capitol.

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There have been some recent developments of national impact of which many of you policy wonks may be aware – the posting of a Waters of the United States (WOTUS) Rule revised to reflect the US Supreme Court’s decision in Sackett, a revision that substantially reduces the scope of federal jurisdiction over certain kinds of waters, and the publication of an overtime threshold rule that would raise today’s national threshold from $35K per year to roughly $55K per year. The former only tangentially affects California. The latter does not affect California at all. Given that, we’ll report about both later, as much to again explain why so much of what affects most states when the federal government issues regulations and legislation does not affect California as to explain the tangential impact of the new WOTUS Rule.

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